Posted
by
Zonk
on Sunday December 30, 2007 @03:35PM
from the so-it's-only-halfway-evil dept.

An Engadget article notes that the Washington Post RIAA article we discussed earlier today may have been poorly phrased. The original article implied that the Association's suit stemmed from the music ripping. As it actually stands the defendant isn't being sued over CD ripping, but for placing files in a shared directory. Engadget notes that the difference here is that the RIAA is deliberately describing ripped MP3 backups as 'unauthorized copies' ... "something it's been doing quietly for a while, but now it looks like the gloves are off. While there's a pretty good argument for the legality of ripping under the market factor of fair use, it's never actually been ruled as such by a judge -- so paradoxically, the RIAA might be shooting itself in the foot here."

A guy ripped a CD, which is unauthorized but legal for backup purposes according to fair use. However he put it in his shared directory, which is NOT backing up.

You're letting them get away with their "making available" argument and be able to level charges without any real evidence of a crime taking place.

Just because it is in a shared directory does not constitute actual sharing. It may just be there for display purposes, a way of showing people what he has, for braggadocio. Until someone tries to download it, no illegal copying takes place (unauthorized !(always)= illegal). And until someone tries, you can't know whether anyone could actually succeed.

For starters... Please quit conflating the act of infringement with "theft" or "murder". It's NEITHER and as such you should really, really quit doing it. Everyone that does that should do so. Honest.Infringement is violating the right established by the government to further the production of the arts in which a party has the right to control the reproduction and distribution of a so protected work. If I infringe upon that right, all I've done is usurped your right to control that production and distr

That's what made me groan about this article. It confirms that the RIAA isn't actually (necessarily) questioning the legality of ripping, but they are twisting the words and facts as any good lawyer would, to insinuate that there is something immoral about a defendant that rips CDs and takes "unauthorized" actions. I just hope that the jurors in any case where they use that BS implication would be smart enough to see through it, but I'm not optimistic.

I think their game plan is a bit more nefarious than that. While common sense tells us that device shifting and format shifting are valid extensions of the concept fair use, they haven't been tested in court. What the RIAA would like to do here is set a precedent against device and format shifting being allowable, the idea being that we'd need to pay again and again whenever new devices or formats are developed.

They're definitely shooting themselves in the foot though. By saying that legally allowed so-called "ripping" is "unauthorised", What they're doing is essentially saying is that they don't recognised the law's jurisdiction.This could easily come back to haunt them in a court of law, if it's able to be presented as evidence of intent or behaviour. Somehow I think they'll get away with it though. A company with enough time and lobbying power on its hands can easily direct (usually pervert) the cause of jus

Because the status quo is nothing more than a de facto presumption of legality. At such point as a judge rules that it is legal, that becomes legal precedent. The last thing they want is for format shifting to be ruled fair use, since they have made their living over the decades precisely through reselling the same content in different formats over and over again.

More to the point, format shifting at least currently is only presumed to be fair use when done by an individual. Depending on how a ruling on format shifting was worded, there's at least the potential that it might make it legal for someone to set up a commercial format shifting service that provides crystal clear digital copies of your worn out phonograph records without paying the RIAA, its members, the composer, artist, or publisher a dime. Nothing would scare a greedy, corrupt cartel like the RIAA more than the risk of format shifting becoming de jure legal in the more general case, as that would mean that they basically would have to make a living entirely by creating new music that is worth listening to, something which they haven't, IMHO, done successfully in a very long time.:-D

In other words, they've been milking the oldies for so long they can't imagine any other way to make money from music. What happens if I have an old VHS recording that I want to shift to a DVD... seems to me the same issues would apply. Hell, what if I have a book that I want to convert to an electronic format so I can shift it to my portable reader. The outcome of the RIAA's crusade will have effects well beyond music.

Nothing would scare a greedy, corrupt cartel like the RIAA more than the risk of format shifting becoming de jure legal in the more general case, as that would mean that they basically would have to make a living entirely by creating new music that is worth listening to, something which they haven't, IMHO, done successfully in a very long time.

Call up a recording company. Ask them for a prospectus, including their revenue ration of "new" to "old" music.

Granted, the raw revenue of new music is probably greater then old music, but in terms of profit, it doesn't do nearly as well, as it actually costs money to make.... Worse, new music is also often very short-lived as moods shift. Certain parts of their back catalog (e.g. Beatles, Rolling Stones, Jimi Hendrix, Beach Boys, etc.) make up a fairly stable long tail that they can always count on to bail them out when "shift happens".

Beatles compilations have been known to sell as many as 10 million copies.

And why shouldn't we assume it's leagal? We've been recording tapes from pur LPs for decades, and that practice's legality was explicitly spelled out in the Home Recording Act of 1978.

I see no reason why rupping a CD to MP3 is any different than recording an LP to yape, and neither does anyone else who doesn't work for an RIAA label, or is stupid enough to believe their utter bullshit.

Here's a thought - anyone out there with a bit of spare cash and a penchant for philanthropy fancy starting their own recording company, purely for the purposes of getting a test case on the law books?1. Create recording company2. Publish a recording3. Find someone who format-shifted your recording4. Sue them and lose, just to get a precedent on the books5. Humanity profitsCost to start up a company, make one recording, distribute it, hire an incompetent lawyer and declare bankruptcy (in that order) can't b

Because people want fairness more than they want the letter of the law. To most of us, it seems fair that distributing copies to people in defiance of ownership type rights is unfair. Most juries (in the U. S. at least), would award damages for a case of someone distributing something they don't own the right to distribute. Many, probably most there would approve of criminal charges.
But juries usually want to be 'fair'. 'Fair' means that it's much more serious to sell copies for substantial profit than to pass them around for 'free'. 'Fair' means that off air recording is either not wrong, or it's a pretty trivial wrong. 'Fair' means they don't want a EULA to be the equivalent of a normal signed paper contract.
So when the recording industry starts claiming that their rights are being violated by people making legitimate backups, or not buying a second copy to use in the car, or using a VCR for space or time shifting, or lots of other thing, the recording industry starts looking like Darth Vader/Simon Legree/Satan, etc. They come off as anal-compulsive jerks trying to give basically honest people a hard time, rip off little old ladies, tie Nell Fenwick to the tracks, and probably eat live kittens on their days off.
And the jury is looking for any chance to do what's 'fair' to Baelzebub/Snydley Whiplash/Hannibal Lecter. So, they don't just reject the arguement that ripping is a violation of fair use, they look for excuses to reject the rest of the RIAA's claim as well. Any excuse.

If you want to prove that ripping a CD is fair use, you need to test it in court. It is the job of the courts to decide the fine details of law.

In the UK, it would be called Fair Dealing, and has never been tested in a Court of Law. Therefore the Authorities can assume it is illegal, giving the police powers of arrest for the cassettes in people's cars that they taped from CDs using equipment that they bought in good faith for that purpose. In practice, however, so many people are doing it that nobody

I'm not in the UK but I would have thought that the whole innocent until proven guilty thing would come into play here where if it hasn't actually been proven in court then it isn't actually grounds to make arrests on. Given that the original premise is usually forgotten, surely if it might be challenged as a reason and found to be not accurate that the results of the entire search should then be thrown out on the basis it was an illegal search. The "crime" that has been committed is actually a civil one fr

Copyright infringement is criminal in the UK. Most offences here are indeed "innocent until proven guilty", though there are "guilty until proven innocent" offences (e.g. racism, terrorism) and "guilty despite being proved innocent" offences (anything sexual).

Just because something isn't definitely an offence doesn't mean you can't be arrested for it if a constable thinks it looks like an offence, and detained while they work out whether or not it was an offence or whether you may have done something

Looks like the person in question was using Kazaa, which listed his mp3 files, although they weren't actually shared (uhh... does kazaa publish them if they're not shared?) Media Sentry found them (but didn't actually download them?). He represented himself and lost big time.

As it actually stands the defendant isn't being sued over CD ripping, but for 'old-fashioned' song downloading.

Still wrong.

They sued him over uploading, or at least, having the files in question in his Kazaa shared folder.

Yes, they may have "taken the gloves off" regarding their terminology, but this case has the exact same
underlying "offense" as the thousands of other RIAA lawsuits we've heard about in the past few years.

Maybe people on Slashdot have a problem when they equate "unauthorized" with "illegal" which they have done countless times in order to make the RIAA look bad. The RIAA is arguing in court filings that it does not "authorize" ripping of CD's.... which is 100% correct... it does NOT authorize you to rip from a CD. However, that is also completely meaningless as well. If I buy a car, the car maker does not "authorize" me to drive the car, paint the car, put gas in the car, etc. etc. etc. So what, authorization is completely irrelevant.

The RIAA is arguing in court filings that it does not "authorize" ripping of CD's.... which is 100% correct... it does NOT authorize you to rip from a CD. However, that is also completely meaningless as well.

So, the RIAA is allowed to make frivolous statements in court? I remember that the last time (in 1992) I had a conversation with someone at the IRS about my income tax, one of my arguments was rejected on the basis that it was "frivolous" (i.e. completely meaningless), and the person there told me that

Now I'm not a lawyer and all that, but my bet would be that while calling a fair-use copy "unauthorized" doesn't change the legality, a copy's being explicitly authorized would certainly impact the validity of their argument, or at the very least require further examination of the specific terms under which authorization was granted. If that's so, then clearly specifying whether or not a copy was made with authorization suddenly becomes quite relevant.

Well, to be fair, copyright is all about making "unauthorised" equal "illegal", with a few caveats. It's a sad sign of the state of fair use, that it's so eroded and ignored, that people assume that, just because the RIAA imply so, ripping is illegal.

First off, you save your silly rant for someone else and for the right context. The article has to do with ripping CDs that you own for your own use, which the RIAA doesn't recognize as valid, but it falls squarely under Fair Use laws. It is not just my opinion that they are wrong on this issue. It is the clear law in the U.S., as confirmed by the courts in the Sony [wikipedia.org] case back in 1984.

Second, I've spent (rough ballpark guess) $15,000 over the past 25 years or so to amass my entirely legal music collection [zycha.com]

Well, that's not quite right. There is no blanket "personal use" exception in fair use. Other countries have something like that, but it doesn't exist in the US.In the Betamax decision, for example, the Supreme Court differentiated between "time-shifting," which it ruled to be a fair use, and "library-building," which was not. Both are personal uses, but one is a fair use and one is not.

Also, look at Section 1008 of the Audio Home Recording Act, which immunizes certain home audio copying -- you can't imm

They may have read the article, but the article sucked. If you put any amount of thought into it, you would wonder how the RIAA would randomly pick someone and sue them for ripping CDs for personal use. A google later you'd find out that he was originally identified as a kazaa user, went to court without a lawyer, and lost.

Just because something has a fair use defense, however, does not mean it was authorized. In fact, asserting a fair use defense is a tacit acknowledgement that the copyright holder did not authorize the use, hence the need to rely on the fair use doctrine.

Finally, even if ripping tracks is a fair use (likely), putting them online for someone else (especially if that someone else is not within the sphere of your private household, going by the text of the AHRA and the legislative record behind it) to download is certainly unauthorized and (per every court that's looked at it, e.g., Napster, Grokster, Aimster, etc) not within the fair use doctrine.

What the RIAA said in their court filing was that copies that are ripped and placed in a shared folder are unauthorized copies. They did not say anything about copies that are ripped but not shared.

This is significant because fair use depends on the purpose of the copying. Copying to put on your portable player would be a totally different situation under a fair use analysis than copying to give away to strangers on the internet.

At least in this case, they aren't trying to argue that all ripping is illegal--just this defendant's ripping. (And in other cases, they have said that ripping for your portable player is OK).

I believe that there are similar considerations if a defense under the Audio Home Recording Act, rather than under fair use is considered. The nature of the defendant and the reason for ripping would be relevant as to whether that covers him.

If the judge doesn't go along with their argument, they'll have to shut up about ripping being unauthorized.

If they get mp3's from ripping ruled to be unauthorized usage, that will just drive another nail in the coffin of CD sales. Consumers will turn to digital download services and completely eschew physical media. Artists will see the dwindling usefulness of the record companies and go independent.

Either way, the RIAA member companies will lose out. It would be far better for them to compete in the new arena than to use litigation to drive their way of thinking down everyone's throat. If they continue to ignore the cluebat beating them over the head, they'll wind up in the same boat with other organizations that have tried a similar approach (*cough*SCO*cough*).

"Once Defendant converted Plaintiffs' recording into the compressed.mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs" [Supplemental Brief [ilrweb.com], page 15, lines 16-18, emphasis added].

The phrasing that they used seems to indicate that the MP3 files were authorized until they were placed into the shared folder. Now, I'm not a lawyer, so it's possible that this means absolutely noth

Is this the same retread story that's been making the rounds for the last two weeks?

Short summary: Guy ripped CD and placed MP3 in P2P shared directory. RIAA sues him for "making available" an "unauthorized copy". Media ignores first part and reports that RIAA is suing the guy for simply ripping a CD (how would they know if that's all he did?). Frenzied and completely incorrect stories are reported and posted to slashdot, with hundreds of comments posted by people who can't (or choose not to) read and correctly comprehend the actual events.

Will somebody please put a bullet in this undead zombie beast of a story? It seems to be submitted every day and the summary is damn near always wrong.

The rips in the brief are unauthorized because they have been placed in the share directory. Here's how it breaks down:

A CD ripped to your hard drive for personal use: OK.

A CD ripped to your hard drive and then copied into your Kazaa share directory: unauthorized.

Thus, the very same ripped MP3 file can go from "authorized" to "unauthorized" just through the act of making it available for sharing. "Personal use" is the big deal here, and I think everybody will still continue to argue over what "person

I stand corrected. While from time to time various record label mouthpieces have acknowledged that ripping for personal use is okay, agreed that it'd be nearly impossible to get one of them to sit in the stand and state that it's officially "authorized."

The point I was trying to make is that the record label was not stating that the mere act of ripping is illegal. Some may draw that inference from the Engadget's use of "authorized" but as you correctly point out, they are different things.

"What if (thru Windows File Sharing), my hard drive itself is shared?? What about Administrative (C$) shares than many are not aware of?"

I can't answer this one for you. It's one of those Schroedinger things: it all depends on what the court decides. But first, the record companies would have to catch you, and then opt to take you to court.

Practically speaking, I wouldn't worry. If you're sharing your music with your workmates (as many, many people do), I suppose your biggest risk would be a disgruntl

I'm normally not a paranoid cynic, but I'm actually quite bothered that the RIAA can try to dictate how I organize the files on my personal computer. What I suspect they are doing, by wording it they way they did, is to create as much of an accusatory tone as they can without having to actually prove any illegal activity. It would be one thing to say, "User X seeded Song B to a bittorrent client", but then they'd actually have to prove that, or face libel/slander charges.

It would be one thing to say, "User X seeded Song B to a bittorrent client", but then they'd actually have to prove that, or face libel/slander charges.

In order to actually do they'd at minimum need to download the file in question. Using a client hacked to never upload. Even then all they'd be able to say is "This material was made available by a machine with that IP address..."

"This material was made available by a machine with that IP address..."

This is what they did in the case against that woman who actually went all the way to court without settling. This totally pisses me off, since they can't prove that I'm the one who did the download. Who's to say my machine wasn't totally pwned by some remote hacker? Perhaps a thief snuck in while I was at work, or a drunk friend at a party used my computer (or a sober friend for that matter).

They ARE unauthorized copies. There really has NEVER been any debate about that. The label didn't specifically authorize them therefore they are unauthorized. ITS THAT SIMPLE.

That said, the ENTIRE POINT of fair use is to legalize 'unauthorized copies' in limited 'fair use' circumstances. Fair use, by definition, operates on unauthorized copies. You have to make an unauthorized copy in order for fair use to apply. If the copy was authorized you wouldn't need fair use -- because you've got explicit authorization directly from the rights holder.

The RIAA calling these cd rips unauthorized is about as salient as when they 'over' identify the defendant... if they mention that Jane Doe is a 35 year old woman who works as a bookkeeper, they are not suggesting that being 35 years old, a woman, or a bookkeeper are issues in the case, they are merely identifying the defendant.

Similiarly identifying the unauthorized songs ripped from CD by the defendant merely identifies the songs in question. The fact that they are 'unauthorized' vs 'authorized' is as irrelevant as the fact they were ripped from CD instead of Sirius/XM-Radio.

The judge certainly knows this. The lawyers certainly all know this. Maybe the defendant isn't aware, but that's why he should have a lawyer.

Knee-jerk reactions by bloggers who seize on irrelevant facts without knowing or understanding how copyright works is the real issue here. I propose we have another front page article... "prominent journalists and bloggers somehow don't know making a copy without explicit authorization results in an unauthorized copy, DUH!"

Thing is you have to know the context in which the question was being asked. In the Hotaling case the copies were illegal copies. The court used the term "unauthorized" as synonymous with "illegal". In Howell the judge was asking the question in light of the Hotaling case. When he asked if they were unauthorized, he meant "were they illegal?".

Except that if they are unauthorized copies they can be presumed illegal, because the onus is on the defendant to successfully argue fair use before they aren't. (Fair Use is a -defense- against a charge of infringement... and to use it infringement has to occur first.)The RIAA is essentially free to assert unauthorized copies are illegal... its up to the defendant to prove they aren't.

That doesn't violate the presumption of innocence... because of course the defendant himself is presumed innocent of wrongd

I am "unauthorized" to walk around town or drink my coffee. Nobody, certainly not the RIAA, has granted me any permission to do so. However, I also require no authorization.
This is the important thing to learn here: when someone says you have no permission to do something, ask yourself whether any permission is needed. You need nobody's permission to exercise your rights. As soon as you accept the lie that you do, you're lost.

Users aren't going to give fuck whether they are "authorized" to rip CDs or not, or even if it is fair use -- they are simply going to do it. The only thing that will stop them would be DRM, and DRM on CDs is pretty much ineffective anyway.

The following has been removed from the RIAA's website, but the Internet Archive remembers [archive.org]:

If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail.

The following has been removed from the RIAA's website, but the Internet Archive remembers [archive.org]:

If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail.

INAL, but from my understanding, If you repeatedly accuse someone (individual or group) of violating your rights and/or property and refuse to press legal action, that is, as far as I know, textbook libal/slander...we need to form a coalition of music fans who rip CDs to digital file formats and sue the RIAA for character assassination.

> As it actually stands the defendant isn't being sued over CD ripping, but for placing> files in a shared directory. Engadget notes that the difference here is that the RIAA> is deliberately describing ripped MP3 backups as 'unauthorized copies'

Apparently Engadget is confused as to what a "backup" is for and what a "shared directory" is for.

May I quote from a Speedy Gonzolez cartoon, where the fat oaf cat is looking for something to put out his friend, on fire. He grabs a bucket:

> Engadget notes that the difference here is that the RIAA is deliberately describing> ripped MP3 backups as 'unauthorized copies'...

They are 'unauthorized copies'. So are copies made under fair use. Unauthorized is not a synonym for illegal. It just means that you don't have the copyright owner's permission. However, there are many things you can legally do with a copy without the copyright owner's permission.

> While there's a pretty good argument for the legality of ripping under the market> factor of fair use,...

You mean under the Audio Home Recording Act exception. "Fair use" is something else entirely (it is, though, an example of something you can legally do without the copyright owner's permission).

ANY directory is a potential "shared" directory. Filesharing software doesn't limit sharing to C:\Share, or any other fixed name. By the RIAA's contention, any music file on a computer can potentially be shared, so any music file on a computer must be illegal.

Would someone just go out and metaphorically shoot these guys so that we can just be done with them please.

Perhaps the idea is to have people stop buying CDs, and move people over to getting their content from a place like iTunes. If you RIP your content from a CD, you can put it in whatever format you want. Their is no content control.

If you buy from a place like iTunes, there is some form of control, and in the future they can alter the form of control. Power is in their hands.

I think the whole premise that record companies want to continue to sell media is flawed. It costs them money to produce the medi

Seems to me they just took away another reason to buy a CD. If I can buy from iTunes or other online service, sync my iPod to that or make playlists and burn CDs but face the threat of lawsuits for buying and ripping a CD of the same material and then doing the same things with it, why should I buy any more CDs?

If the RIAA can get people to think rips are "unathorized" copies they will be able to disregard fair play soon.

"Fair use" I think you mean. They'll have a hard time convincing consumers that it is morally wrong to rip their discs: ripping is a pretty entrenched idea now. People like me that started out on vinyl "ripping" to reel-to-reel will never accept there's a damned thing wrong with that. The only hope they have is getting another rewrite of copyright law pushed through Congress, which is far more likely.

More and more, I see the RIAA as a major league loose cannon, with repercussions for the studios that I have to believe they haven't fully considered. I know the studios are just biding their time, waiting to see just how much the RIAA can win for them in terms of legal precedent, copyright modifications, and alterations in public attitude towards copyright infringement. Still, I can't help but think this is going to be self-defeating in the long run. I haven't bought any big studio music in twenty five years, and I don't plan to start. They've already lost me as customer, permanently. If they keep going the way they're going (lawsuits, threats and intimidation, high prices, poor quality) they're going to lose more.

If you are referring to this [snopes.com], it's been debunked. I still see where you are coming from however; some decisions made are stupid in courts especially as far as lawsuits. However, there is no way in hell CD ripping for personal use would be found unlawful in court, and if it ever was, the decision would be reversed within days at the most. A stupid jury or an unaware judge are possibilities but the uproar of the American public who would have virtually every media corporation and/or outlet behind them regardl

Maybe, but Fox claims to be a professional news organization. Slashdot doesn't, and in fact just takes stories from anybody... no real journalism involved. Slashdot is also pretty open about that, and doesn't claim to be anything other than what it is. Really, you should be criticizing Fox for being down at Slashdot's level.

Fox claims to be a professional news organization. Slashdot doesn't, and in fact just takes stories from anybody... no real journalism involved.

Define "professional".. and while you're at it, define 'real journalism'.

There are no real active peer reviewers anywhere, and no real consequences for printing falsehoods unless they're just totally false and against someone very powerful. If Dan Rather hadn't actually shown those fake Bush Nat'l Guard [wikipedia.org] records on national television (60 minutes), would anybody ha

So... please reply IF you can honestly say that all of your rips and reencodings are of purchased media and are only used for your own viewing (yes, that means NOT shared among your family... that is, no multiple copies of rips on multiple devices for different people).

As I understand, the iTunes songs I have purchased are authorized to be played on up to FIVE computers (and no technical limit on the number of iPods). I don't think that it matters if one computer belongs to my son, another to my wife, an

Fair use is often cited as a reason why people can supposedly do whatever they want with purchased media.

No, fair use is cited as the reason that people can do what they want with purchased media for their own use (the law actually has many other applications, but that's what is most relevant here.) Not too many people I know, and not many on Slashdot, believe that fair use implies a license to commit copyright infringement on a massive scale, because it doesn't. Whether or not you believe that Fair Use

The Doctrine of First Sale covers sale and lending of ones own property. Therefore, used CDs (and DVDs) are perfectly legal. (And so are libraries...before the Doctrine of First Sale libraries were technically illegal!) It is only the sale of NEW CDs/DVDs that earns the MAFIAA their cut. So if you don't want to take the radical step of not purchasing music or movies, ever, this is the perfect solution.

Buy it used. Then rip, mix, burn...for your own personal consumption, of course...

The Doctrine of First Sale covers sale and lending of ones own property. Therefore, used CDs (and DVDs) are perfectly legal. (And so are libraries...before the Doctrine of First Sale libraries were technically illegal!)

Actually the reason libraries exist is that they predate copyright. If they didn't already exist it would probably be impossible to "invent" them now.

Aren't Apple, Sony, Microsoft, Sandisk and anyone else that sells a device and software to transfer music from CDs to the device doing just the same? If what they're doing is illegal, why are the RIAA not hitting them as well?

Probably because if push came to shove the RIAA would lose any such battles. Anyway their current tactics, intended for use against individuals, probably just wouldn't be much use against other corporates.